Ten Recommendations to Prosecutor Karim Khan to Improve his Relationship with Civil Society during Preliminary Examinations: Perspectives from the Situation Countries

[Amanda Ghahremani is a lawyer and consultant specialising in international criminal law, corporate accountability, and universal jurisdiction.

Raquel Vazquez Llorente is the Permanent Representative to the International Criminal Court for FIDH (International Federation for Human Rights).]

In June 2021, Karim Khan started his nine-year mandate as the Prosecutor of the International Criminal Court (ICC). To commemorate the occasion, the International Federation for Human Rights (FIDH) has been conducting an evaluation of several aspects of Prosecutor Bensouda’s term. In a recent publication, we take stock of the work of the Office of the Prosecutor (OTP) during the preliminary examination phase. Here, we summarise some of the key takeaways and recommendations for Prosecutor Karim Khan as he begins his tenure.

Preliminary examinations are an essential activity at the ICC. They are the first step towards potential justice and represent the stage at which the OTP decides whether the necessary criteria are met to open an official investigation. Despite this fundamental role within the ICC’s mandate, the Rome Statute gives a great deal of discretion to the Prosecutor to determine the policies, processes, and timelines for carrying out preliminary examinations. While this flexibility is necessary to maintain the independence of the OTP and accommodate the breadth of situations that may come under the court’s jurisdiction, the OTP’s activities have delivered mixed results.

We spoke to over 30 organisations in 13 countries that have been directly involved in preliminary examination activities during Prosecutor Bensoudas’ term (June 2012-June 2021). These countries were Afghanistan, Bangladesh, Burundi, Colombia, Georgia, Guinea, Israel, Mali, Mexico, Myanmar, Palestine, Ukraine, and Venezuela. We also consulted with other legal professionals who either have submitted information to the ICC under Article 15 of the Rome Statute, or are former OTP staff members. Additionally, we relied on FIDH’s first-hand experience monitoring the OTP’s work, and conducting documentation, outreach, and legal analysis at the preliminary examination stage.

Our research revealed the OTP has certainly made important progress in the past nine years. When Fatou Bensouda assumed the role of Prosecutor in 2012, she ushered in a new age, marked by greater standardisation, transparency, and openness with civil society groups. In her first year in office, she finalised the policy paper on preliminary examinations, which established a clear procedural framework for conducting analyses during this stage. Throughout her mandate, she introduced a series of thematic policy papers that have impacted and interacted with preliminary examinations, including a trailblazing policy on sexual and gender-based crimes (examined in a previous paper in this series). In tandem with these policy papers, the OTP also increased its transparency through annual reports and situation-specific reports, which fostered a better understanding of the status of ongoing preliminary examinations among civil society, academics, and lawyers.

Despite these accomplishments, our consultations with civil society groups uncovered a number of ongoing challenges with respect to preliminary examinations. In the paper, we unpack civil society’s most pressing concerns and put forward recommendations to Prosecutor Khan, which we believe will improve the OTP’s working methods, transparency, and communication vis-à-vis local civil society. To the extent possible, we avoided duplicating the Independent Expert Review’s recommendations.

Ten Recommendations to Prosecutor Karim Khan

Recommendation 1: The OTP should clearly delineate its role and responsibilities, particularly with victims and affected communities, in relation to other ICC organs (e.g., Victims Participation and Reparations Section, or VPRS, and the Registry at large) during preliminary examinations.

Rationale: Virtually all groups FIDH consulted seemed to lack clarity on the specific activities that correspond to each organ of the ICC, and certain approaches can appear contradictory to communities. For instance, on one hand, the Registry may be interested in reaching the widest number of people who may be granted victim status should a case be brought to trial. On the other hand, in the early stages, the Prosecution may be inclined to minimise their interactions with victims and manage communities’ expectations, in case the statutory criteria for opening an investigation are not met. When communities receive conflicting information from representatives of different organs, this can lead to confusion, the raising of expectations, and the heightened risk of disappointment should an investigation not be opened.

Recommendation 2: The Preliminary Examinations Section should include experts on the relevant countries, who can be selected through swift and efficient hiring procedures. Fixed-term, local consultants, internal or third-party secondments, and paid visiting professionals can temporarily bring specialised capacity.

Rationale: The absence of country experts deprives the Preliminary Examinations Section of valuable expertise on the domestic context, preventing it from creating tailored strategies for each preliminary examination. Activities that would benefit from local contextual knowledge include external communications, engagement with local civil society organisations, security risk assessments, factual and pattern analyses, and the planning of missions.

Recommendation 3: The Prosecution should codify and publish its confidentiality policy, particularly on the ICC website and in all responses to Article 15 submissions.

Rationale: While the OTP operates under the strict confidentiality terms reflected in the Rome Statute, there is little to no information available on the ICC website describing the OTP’s confidentiality policy. This has left many civil society groups with the fear that their information may be shared with governments, particularly in countries hostile to the ICC, where even the most basic information is sensitive—for instance in Myanmar, Palestine/Israel, or Venezuela. As a result, some civil society groups have decided against transmitting valuable information to the ICC.

Recommendation 4: The OTP should hire a dedicated cyber-security expert or team (if such a role does not yet exist within the current Cyber Unit) to (1) develop a more robust information security protocol; (2) adopt appropriate technology and (3) train staff to implement the protocol and use the technology effectively. In the meantime, the OTP must be clear and transparent with CSOs about the limitations of its information security systems.

Rationale: In the context of increasing surveillance and cyber-intelligence capabilities by governments and other actors, especially in Venezuela, Mexico, and Palestine/Israel, civil society groups have expressed a growing fear of engaging with the ICC, particularly when submitting information that may be probative of a crime. The OTP has a Cyber Unit, however, no one consulted was aware if the OTP has dedicated staff with the requisite expertise and authority to manage the office’s information security, particularly to monitor and neutralise potential breaches. Again, civil society groups have chosen not to share valuable information with the ICC as a result.

Recommendation 5: The OTP should standardise its ‘soft’ deadlines for receiving information from states to complete its complementarity analyses and reduce the length of preliminary examinations.

Rationale: The average length of time for the OTP to ascertain whether the statutory criteria are met to open a formal investigation is approximately 5.3 years. Despite the 2013 preliminary examination policy paper and the OTP’s strategic plan to use preliminary examinations to “obviate ICC intervention through prevention and complementarity” and to “perform an early warning function,” FIDH has observed that this function is inoperative in practice. Preliminary examinations are becoming protracted due to states’ failure to carry out timely and independent investigations.

Recommendation 6: The Prosecution should publish and promote guidelines for civil society organisations when submitting Article 15 communications.

Rationale: A common concern by civil society groups—particularly in Mexico and Venezuela— is the absence of clear instructions by the OTP on how to best present and submit information. Although some international NGOs have created manuals, guides and even apps that explain the process of drafting Article 15 submissions, these are unofficial documents. Since the OTP typically cannot provide individualised feedback, nor can it share detailed information on working prosecutorial theories, this is one way to ensure that civil society groups focus their limited resources on the most valuable activities.

Recommendation 7: The OTP should publish periodic updates on its complementarity assessment and invite the input of civil society with knowledge of the national legal system and domestic proceedings.

Rationale: Many groups highlighted the perceived inconsistencies in how the OTP carries out its activities during the complementarity assessment. For example, the number and regularity of trips taken to  countries or the analysis of matters related to complementarity appear to vary greatly across different situations.

Recommendation 8: The OTP should adequately and appropriately staff its media team, both in terms of the quantity and quality of staff members, including a spokesperson position. The dedicated media team should be responsible for both proactive and reactive communication strategies.

Rationale: While the office has, at times, been reactive to media requests and in-country developments (e.g., statements in response to national developments in Guinea, Burundi or Palestine), there is no clear, proactive communication strategy built into the Prosecution’s handling of preliminary examinations.

Recommendation 9: All OTP staff members should be informed of communication strategies and receive talking points for engagement with external stakeholders.

Rationale: ​​Civil society groups that interact with members of the OTP receive varied information about preliminary examinations, and often feel as though they need to decode the words and body language of staff members in order to decipher the information being communicated. The ambiguityconveyed in these interactions gives the impression that the OTP lacks internal clarity about what staff can communicate to civil society, particularly to groups that have submitted information to the OTP.

Recommendation 10: The OTP should coordinate their communication activities with other relevant ICC organs, such as the Registry, to ensure that each organ is conducting complementary activities, with cohesive messaging, within the structures of their mandate.

Rationale: The failure to effectively communicate the OTP’s activities is ultimately a systemic problem and must be addressed holistically. The lack of coordination among ICC organs, including the Registry and VPRS, complicates the role of the OTP when it comes to communications related specifically to preliminary examinations. Without a clear delineation of responsibilities across ICC organs, civil society groups will inevitably expect the OTP to lead all communication and outreach efforts, as it is the first organ of the Court with whom many of them interact.

A more in-depth analysis of the successes and challenges of the OTP during the preliminary examination phase from 2012-2021, including greater context on the above recommendations is available in the paper. The next and final piece of this stocktaking series, to be published at the end of 2021, will address how the OTP conducts outreach to communities and civil society in situation countries, across all stages of its activities.